Legal Victory Undermines ‘Free Entry’ Rules for Mining Companies

Read this blog from Westcoast Environmental Law on a recent landmark legal decision from the Yukon which undermines “free entry” – a mining industry practice which allows companies to enter land for the purposes of staking mining claims, without obtaining permission. The court found “free entry” violates constitutional obligations to consult and accommodate First Nations. (January 10, 2013)

The decision of the Yukon Court of Appeal in Ross River Dena Council v. Government of the Yukon – delivered just days before the end of 2012 (on Dec 27th) – may force governments across Canada – including in BC – to rewrite their mining laws. The decision essentially holds that the “free entry system” – a system of allocating mineral rights that is central to mining law in much of Canada, including BC – is inconsistent with the obligation of the Crown to consult First Nations on decisions that may impact their Aboriginal Title and Rights.

What is “Free Entry”

At the root of the conflict in the Ross River Dena case is the free entry system, which has given the mining industry unrestricted access to “stake a claim” on most public, private and First Nations lands since the time of the gold rush, based on the antiquated assumption that mining deserves priority over all other land uses. Our 2004 Report – Undermining our Future – explains the rights typically associated with free entry (here’s the 2 page summaryversion), and some of the reasons why it is a cause for concern:

There are three primary rights associated with the law of free entry:

the right of entry and access on lands that may contain minerals;

the right to locate and register a claim without consulting the Crown [or First Nations]; and

the right to acquire a mineral lease with no discretion on the part of the Crown.

A core difficulty with free entry lies in the non-discretionary way it provides priority to mining rights over others, including private landowners, and other resource users, such as timber, oil or gas, and tourism operators. These other users are governed by a discretionary system, whereby the Crown decides how and whether tenures should be granted, and retains the ability to decline allocating these rights for a particular policy reason. The lack of discretion in the free entry system means that no consideration of environmental values occurs when mineral tenures are granted, and the environment is left unprotected.

The Crown has also taken the position that because of the discretionary nature of the free entry system, it has effectively legislated itself out of its constitutional duties to First Nations – a position rejected by the Yukon Court of Appeal in the recent Ross River Dena case.

The territory of the Ross River Dena, who are part of the Kaska Nation, stretches over a vast area of 63,000 km2 in the South Eastern Yukon. The Ross River Dena Council recently challenged the free entry system, asserting that the Government of the Yukon had an obligation to consult with them before recording quartz mining claims in the Ross River Area.

The Yukon Supreme Court held that the Crown did have a duty to consult with First Nations on the recording of a mining claim, but could meet this duty by simply giving notice to the affected First Nation after the grant of the mineral claim. The Yukon Court of Appeal has soundly rejected this approach, holding that something more than mere notice is required:

It is apparent that the judge considered the open entry aspects of the Quartz Mining Act to be essential to the mining industry, and considered that any requirement of consultation greater than the mere furnishing of notice claims would be impractical.

I am of the opinion that the judge erred in his analysis. I fully understand that the open entry system continued under the Quartz mining Act has considerable value in maintaining a viable mining industry and encouraging prospecting. I also acknowledge that there is a long tradition of acquiring claims by staking, and that the system is important both historically and economically to Yukon. It must, however, be modified in order for the Crown to act in accordance with its constitutional duties.

The potential impact of mining claims on Aboriginal title and rights is such that mere notice cannot suffice as the sole mechanism of consultation. A more elaborate system must be engrafted onto the [free entry] regime set out in the Quartz Mining Act. In particular, the regime must allow for an appropriate level of consultation before Aboriginal claims are adversely affected.

On the basis of this reasoning, the Court of Appeal allowed the appeal, and held that the Government of the Yukon “has a duty to consult with the plaintiff in determining whether mineral rights on Crown lands within lands compromising the Ross River Area are to be made available to third parties”, as well as prior to allowing mineral exploration activities.

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